Opinion
NO. 2017-CA-000638-MR
12-07-2018
ROBERT DWAYNE SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert Dwayne Smith, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 10-CR-002790-002 AND 11-CR-000294 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Robert Dwayne Smith brings this pro se appeal from a January 27, 2017, Order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
In the Notice of Appeal, Robert Dwayne Smith spells his middle name as "Dewayne." However, in the circuit court and in a previous appeal, his name was spelled "Dwayne." We shall utilize the later spelling as it appears the incorrect spelling was a clerical error in the Notice of Appeal.
The underlying facts of this appeal were set forth by the Kentucky Supreme Court, as follows:
On July 26, 2010, Smith and his two accomplices, Sharon Smith and Karmisha Hughes, robbed a small grocery store. In executing the robbery, Smith and Hughes entered the store, while Sharon remained outside to act as the lookout. Once inside, Hughes went toward the back of the store while Smith approached the clerk and demanded the money from the cash register. When the clerk failed to respond to his demand, Smith struck her with his fists and with a flashlight. The robbers took the cash register and fled the store. The police soon tracked down the trio and arrested them.Smith v. Commonwealth, 366 S.W.3d 399, 400-01 (Ky. 2012). Smith was tried by a jury, and he was found guilty of first-degree robbery and of being a first-degree persistent felony offender. On April 19, 2011, the circuit court sentenced Smith to a total of 32-years' imprisonment.
Smith appealed his sentence of imprisonment. In Smith, 366 S.W.3d 399, the Supreme Court affirmed in part, vacated in part, and remanded. The Supreme Court affirmed Smith's sentence of imprisonment but vacated as to superfluous language concerning imposition of court costs and fines.
Thereafter, Smith, pro se, filed a motion to vacate and a supplemental motion to vacate pursuant to RCr 11.42. Smith maintained that trial counsel was ineffective in various respects. The circuit court appointed the Department of Public Advocacy to represent Smith; however, the Department filed a motion to withdraw upon determining that a reasonable person would not file an RCr 11.42 motion at his own expense in the case. Eventually, the circuit court granted the motion to withdraw. By order entered January 27, 2017, the circuit court denied Smith's RCr 11.42 motion without an evidentiary hearing. This appeal follows.
Smith contends that the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. To prevail, Smith must demonstrate that his counsel's performance was deficient and such deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668 (Ky. 1984). Additionally, an RCr 11.42 motion is properly denied without an evidentiary hearing if the allegations raised are refuted upon the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Smith initially argues that trial counsel was ineffective for failing to conduct a pretrial investigation and for failing to "question" co-defendants and the victim. Smith's Brief at 8. Smith specifically asserts that trial counsel conducted no "mitigation" investigation. Smith's Brief at 9. Smith posits that trial counsel "may have ascertained information which would better clarified the dangerous instrument [flashlight] and how said instrument was used or involved." Smith's Brief at 9.
As to trial counsel's alleged failure to conduct an investigation, Smith has set forth mere conclusory allegations without supporting facts and has not demonstrated prejudice. And, as to trial counsel's failure to question the co-defendants and victim, Smith does not specify the questions trial counsel failed to ask or the information these witnesses would have provided that was favorable to Smith. Hence, Smith's above allegations of ineffective assistance of trial counsel are refuted upon the face of the record.
Smith also maintains that trial counsel "failed to properly inform . . . [him] . . . [of] new evidence and penalties" that hindered "his decision to proceed to trial or to accept a plea agreement." Smith's Brief at 10. In particular, Smith argues that he was unaware of the 911 call and "new testimony from the alleged victim." Smith's Brief at 11. Also, Smith asserts that trial counsel did not inform him that the "Persistent Felony Offender punishment . . . [could] rais[e] the maximum sentence . . . at trial beyond the normal maximum." Smith's Brief at 10. Had Smith been informed of the new evidence and the enhanced sentence due to being a persistent felony offender, Smith maintains that he would have accepted a plea bargain offered by the Commonwealth and would not have proceeded to trial.
Smith has failed to state with specificity or identify the "new evidence" unknown to him. Smith only points to the 911 call but does not set forth the purported new testimony from the victim. And, as to the 911 call, Smith does not explain how the 911 call affected his conviction by the jury or otherwise demonstrate how it prejudiced him at trial. We also believe that the record clearly discloses that Smith was informed that persistent felony offender status could enhance his sentence and of the perils of refusing to accept the Commonwealth's plea offer. As to these issues, we quote from the order of the circuit court:
[Smith] next asserts that his counsel was ineffective for failing to explain the benefits of pleading guilty and the possibility of a much greater penalty if he were convicted at trial. This allegation is refuted on the record. On the date of trial, prior to assembling the jury, counsel explained to the Court that she had communicated the details of the plea offer, and the consequences of rejecting that offer, to [Smith]. She then, on the record, extensively detailed the offer and all the possibilities which could occur should he reject the offer and proceed to trial. This included the fact that if he were convicted of the Robbery in the First Degree, he would be required to serve 85% of his sentence. She discussed how a conviction as a Persistent Felony Offender would enhance any sentence. She discussed the penalty that could be assessed should he be found guilty of a lesser offense, which was still a significant amount of time. She indicated that she had asked [Smith] for an "articulable reason" why he would want to proceed with a trial, to which he replied that he wanted to preserve his rights on appeal. She stated that in reality that would preserve very little, because even if the conviction were reversed he would find himself back in the same position facing trial.
The Court then spoke directly with [Smith], informing him that he had an absolute right to go to trial, but that his attorney, by placing this information about the plea offer in the record, evidently felt that the offer was worth his consideration. The Court confirmed that
[Smith] understood that there was a very large range of possible penalties that could happen at a trial, and that the Commonwealth's offer was basically the minimum penalty under any realistic situation. [Smith] indicated that he understood, and that he wished to proceed to trial. It is abundantly clear from the record that his counsel explained in great detail the dangers of rejecting the Commonwealth's offer, and that [Smith] understood and rejected that advice.January 27, 2017, Order at 5-6. As a result, we conclude that Smith failed to demonstrate that trial counsel was deficient or that a reasonable probability existed that he would have accepted the plea offer and not proceeded to trial. See Osborne v. Commonwealth, 992 S.W.2d 860, 863-64 (Ky. App. 1998). We, thus, conclude that Smith's above allegations are refuted upon the face of the record.
Smith next asserts that trial counsel was ineffective for failing to tender a jury instruction upon a lesser included offense of robbery and to object to the denial of a directed verdict. It is uncontroverted that Smith confessed to the robbery and to hitting the victim in the course of the robbery. In rejecting the contention that trial counsel was ineffective as to the jury instruction, the circuit court reasoned:
A review of the evidence indicates that [Smith] made statements to police in which he admitted to being actively involved in carrying out the robbery, and it is doubtful that a lesser-included instruction would have been appropriate even if it had been requested. The Court finds that [Smith's] counsel was not ineffective for failing to request an instruction or instructions not supported by the evidence.January 27, 2017, Order at 3. We agree with the circuit court's reasoning. Moreover, Smith incorrectly believes that trial counsel should have objected to the denial of his motion for directed verdict. There is no such legal requirement. We thus conclude again that the above allegations were refuted upon the face of the record.
Finally, Smith argues that trial counsel was ineffective for filing a deficient motion to suppress various evidence and appellate counsel was ineffective for failing to raise the suppression issue on appeal. Particularly, Smith states that trial counsel improperly failed to move for suppression of a flashlight seized at the apartment of his co-defendant.
It appears that police went to the co-defendant's apartment shortly after the robbery upon receiving information indicating that two of the suspects who were seen fleeing the robbery scene had gone into the apartment complex. After obtaining consent to search the apartment, the police found Smith, his co-defendants, the flashlight, and a cash register taken from the store. The record indicates that trial counsel filed a motion to suppress all evidence seized from the search and argued that police did not have proper consent to search the apartment. The trial court denied the motion. Consequently, we do not believe trial counsel was ineffective as to the filing of a motion to suppress.
As to the ineffective appellate counsel issue, Smith argues that counsel was ineffective for not raising these various evidentiary issues in his direct appeal, as concerns the suppression of evidence. However, he fails to address or explain how this ruling was in error or how it would have affected the appeal. In other words, Smith has not demonstrated that a reasonable probability existed that the appeal would have been successful, absent counsel's deficient performance. See Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010).
In sum, we conclude that Smith's contentions were refuted upon the face of the record and that the circuit court properly denied Smith's RCr 11.42 motion without an evidentiary hearing.
For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert Dwayne Smith, Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky